UNITED STATES of America, Plaintiff-Appellee v. Mariano Valencia MENDOZA, Defendant-Appellant. United States of America, Plaintiff-Appellee v. Jose Francisco Garza Tovar, Defendant-Appellant.
Nos. 11-3055, 11-3062
United States Court of Appeals, Eighth Circuit
Submitted: March 16, 2012. Filed: Sept. 10, 2012.
694 F.3d 954
The ensuing loss clause in Caledonia was much narrower than the provision at issue here. The Caledonia clause applied only to an ensuing loss due to an explosion. 239 N.W.2d at 769-70. The Minnesota court‘s interpretation of that policy thus effected only a modest exception to the water pressure exclusion. The Friedbergs’ reading of their ensuing-loss clause, by contrast, would dramatically limit their policy‘s faulty-construction exclusion, because almost “any loss caused by” faulty construction could also be characterized as an ensuing loss under an all-risk policy. The Friedbergs’ interpretation might not entirely nullify the exclusion, as it would still apply to the cost of remedying the construction defects themselves, but their broad view of the ensuing loss clause would nonetheless “nearly destroy” the exclusion. See Aetna Cas. & Sur. Co. v. Yates, 344 F.2d 939, 941 (5th Cir. 1965) (Friendly, J., sitting by designation). To define a loss that is “contributed to, made worse by, or in any way results from” faulty construction as only the cost of remedying the construction defect itself would be an unnatural reading of the language. Especially in light of the more recent decisions of the Minnesota intermediate courts, we do not think the state supreme court would extend Caledonia to adopt the Friedbergs’ interpretation.
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The judgment of the district court is affirmed.
James F. Whalen, AFPD, argued, Des Moines, IA, for appellant No. 11-3062.
Amy L. Jennings, AUSA, argued, Des Moines, IA, for appellee.
COLLOTON, Circuit Judge.
Mariano Valencia Mendoza and Jose Francisco Garza Tovar entered conditional guilty pleas to possession with intent to distribute 500 grams or more of methamphetamine, in violation of
I.
On December 21, 2010, Officer Stephanie Swartz of the Des Moines Police Department was on routine patrol when she overheard a radio request from agents of the Drug Enforcement Administration. The agents wanted a marked unit of the police department to stop a black Volvo sedan that was under surveillance. Swartz saw the vehicle, pulled behind it, and made a traffic stop. In explaining the basis for the stop, Swartz testified:
There was what appeared to be a paper tag up in the left-hand corner of the rear window, I was pretty confident that it wasn‘t an Iowa tag, I couldn‘t read the state of origin, and I had had two recent cases that I had dealt with within the past six months where people had either forged tags for themselves or bought fraudulent tags from other people to be displayed in the vehicle.
Swartz was approximately fifteen to twenty feet behind the vehicle when she observed the tag and decided to stop the car. She was unfamiliar with temporary tags from States other than Iowa and Illinois, and she was unable to read the name of a State of origin on the tag. Swartz thought the tag looked improper and looked like something a person could make with a printer. She also noticed that the tag‘s expiration date was written in large, handwritten block numbers. She thought this was suspicious, because block numbering could be used to alter an expiration date.
Swartz approached the car and asked the driver, Tovar, for his driver‘s license. Tovar said he did not have a license, and Swartz asked Tovar and his passenger, Mendoza, to step out of the vehicle. Swartz asked Tovar if there was anything in the car that she “needed to be concerned about,” to which Tovar replied, “no, go ahead and look.” While Swartz issued Tovar a citation for driving without a license, another officer searched the vehicle and found controlled substances.
A grand jury charged Tovar and Mendoza with possession with intent to distribute 500 grams or more of methamphetamine. Both defendants moved to suppress the evidence obtained from the search of the vehicle. Noting that the vehicle displayed a valid temporary tag from another State, they argued that Swartz‘s decision to stop the car was not supported by reasonable suspicion or probable cause. Because the stop was unlawful, they argued, Tovar‘s consent to search the vehicle and his subsequent statements to law enforcement were the fruits of an illegal seizure.
The district court, relying on our decision in United States v. Sanchez, 572 F.3d 475 (8th Cir. 2009), denied the motions to suppress. The court found that Swartz “credibly testified that she could not read the state of origin of the temporary tag
Tovar and Mendoza entered conditional guilty pleas, reserving the right to appeal the denial of their motions to suppress. On appeal, Tovar argues that the district court made clearly erroneous factual findings regarding Swartz‘s credibility, and both defendants argue that Swartz‘s seizure of the car violated the
II.
The
A.
We see no clear error in the district court‘s factual findings. Tovar argues that Swartz‘s testimony was inconsistent with her report, in which Swartz stated that she “could not read” the paper in the vehicle‘s rear window. Tovar maintains that Swartz “modified her story” when she testified that she “couldn‘t really read any part of the tag well.” He also argues that Swartz‘s testimony regarding the tag‘s coloring and block numbers is inconsistent with her report, which did not mention these facts. Swartz‘s testimony is not internally inconsistent or facially implausible. While documents or objective evidence may contradict a witness‘s story and render her testimony incredible, Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985), there is no such contradiction here. Swartz‘s testimony provided additional details regarding her observations, but elaboration is not a contradiction that compels a finding that the witness was incredible.
Tovar also argues that the court clearly erred in finding that Swartz believed that the tag‘s “simple color scheme” made it look like something that could be forged. This finding, however, was a reasonable inference from Swartz‘s testimony. Swartz testified that Iowa‘s temporary tags include a “red kind of swirly symbol,” and that the tag in this case did not feature the colors of an Iowa temporary tag. She testified that she saw “blue bars of some kind” on the tag, but she did not recognize the colors, and she observed that she “couldn‘t verify that it was a legitimate tag and not something that someone had made on their printer.” In light of this testimony, we cannot say that the district court‘s finding is clearly erroneous.
Tovar next contends that Swartz was “less than forthcoming” about her experience with forged tags. He points to cross-examination in which Swartz acknowledged telling an investigator that she “often” encountered fraudulent temporary tags during traffic stops, even though the government produced reports of only two such incidents at the hearing. Swartz also testified, however, that she has stopped a number of cars with altered tags, but that not all of those incidents resulted in citations or arrests. The district court thus reasonably inferred that Swartz had recent experience with fraudulent tags, and that
Finally, Tovar argues that Swartz‘s testimony that she did not look at the tag while approaching the vehicle is “so implausible on its face” that the district court clearly erred in crediting any of Swartz‘s testimony. Swartz explained that she did not look at the tag because her “attention [was] on the driver and any other occupants of the vehicle for safety reasons.” She elaborated that she was “[t]rying to make sure that nobody has a weapon, nobody is fleeing the vehicle, nobody is making any furtive movements in the front seat or the back seat, ascertain how many passengers there are, et cetera.” Especially in view of the fact that Swartz knew the occupants were under investigation by the Drug Enforcement Administration, this testimony is not inherently implausible.
B.
The district court determined that this case is controlled by our decision in Sanchez. In that case, a Nebraska state trooper observed a minivan without a front or rear license plate, but with a piece of paper affixed where a rear license plate would have been displayed. Sanchez, 572 F.3d at 476. As the trooper pursued the minivan and approached it from the rear, he could read three lines of text on the paper. Id. at 476-77. At the bottom of the paper, in much smaller type, were the words “Arizona Temporary Registration Plate.” Id. The law enforcement officer, however, could not read these words from his vantage point, and he could not discern the name of any issuing State. Id. at 477. “Suspecting that the paper was not an official document, he decided to stop the minivan to investigate.” Id. The trooper eventually obtained consent to search the minivan and found controlled substances. Id. The defendants moved to suppress the evidence obtained from the search. Id. They argued that the piece of paper was a valid Arizona temporary plate, and because it was clearly visible from the outside of the vehicle, the officer should have recognized that it was an official document. Id. The district court denied the motions to suppress, and the defendant was convicted.
On appeal, we noted that Nebraska law generally requires vehicles to display front and rear license plates, but makes an exception for recently purchased vehicles, which may display two temporary “In Transit” stickers. Id. at 478. Nebraska law also provides an exception for out-of-state vehicles, which must comply with the requirements of the jurisdiction in which they are registered. Id. Even assuming that the vehicle in Sanchez properly displayed registration from another jurisdiction, we held that the traffic stop was lawful. Id. We thought it was “objectively reasonable for [the trooper] to expect that the name of the issuing jurisdiction would appear conspicuously on the face of an official document, and to investigate further if a name was not visible.” Id. at 479. “[B]ecause the printing on the paper affixed to the rear was too small to read in its entirety, and no issuing jurisdiction was identifiable, he reasonably suspected that the paper was not an official document that complied with the licensing requirements of another State.” Id.
Iowa law generally requires vehicles to display front and rear license plates.
Mendoza and Tovar argue that this case is distinguishable from Sanchez because, unlike Swartz, the trooper in Sanchez attempted to read the tag as he approached the vehicle on foot, but he still did not see the name of any issuing State. See 572 F.3d at 477. We disagree. The issue in Sanchez was whether the trooper‘s “decision to stop the minivan” was lawful. Id. at 478 (emphasis added). Although we noted the trooper‘s post-stop effort to inspect the tag in Sanchez, Swartz‘s failure to do so has no bearing on whether she had reasonable suspicion to make the traffic stop in the first place. Mendoza and Tovar do not argue that Swartz unreasonably prolonged or exceeded the scope of the stop by failing immediately to inspect the tag. Cf. United States v. Hollins, 685 F.3d 703, 706-07 (8th Cir. 2012).
Mendoza and Tovar also emphasize our observation in Sanchez that it was “objectively reasonable for [the officer] to expect that the name of the issuing jurisdiction would appear conspicuously on the face of an official document, and to investigate further if a name was not visible.” 572 F.3d at 479. They argue that Swartz could not reasonably have the same expectation in this case, because even Iowa‘s temporary tags do not “conspicuously” display the name of the issuing State. In essence, the appellants suggest that if it is generally impossible for officers to verify the validity of temporary tags without stopping a vehicle, then the presence of that ordinary fact cannot amount to reasonable suspicion. The record here, however, includes more than an assertion by Swartz that she could not verify the validity of a tag that appeared on its face to be legitimate. She gave particularized reasons why she suspected that this particular tag may have been fraudulently created on a printer rather than issued by an official authority. The showing of reasonable suspicion in this case does not depend on the sort of expectation mentioned in Sanchez.
Mendoza suggests that the officer in Sanchez had greater grounds for suspicion because he saw only a “piece of paper” attached to the vehicle, while Swartz, according to Mendoza, “knew the document taped to the rear window was a temporary registration tag.” As the district court found, however, Swartz saw only “what appeared to be a paper tag” posted in the rear window. When asked whether she could see that the vehicle had “some type of temporary tag,” Swartz stated only that she “could see that it had a piece of paper.” The record does not establish that Swartz knew the document was a legitimate temporary registration tag.
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Because the traffic stop did not violate the